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Chapter 1

Drawing Boundaries: Women in the Legal Landscape in the Age of Jaume II

In September 1303, Ermessenda de Cabrenys, a member of the minor nobility in the region around the northern Catalan city of Girona, was called to appear before the veguer and his official judge to answer charges against her. The documents do not specify the exact nature of her offense, except to say that she had violated the statutes of the Peace and Truce, but it likely involved one or more of the substantial debts that she had accumulated. An agreement for one of these, dated December 29, 1299, and bound together with the charges of the Peace and Truce violations, showed that she had convinced Bernat de Petra and Jaume de Bertilio, partners in a Girona cloth mercantile, to extend her credit in the substantial sum of 759 sous for unspecified fabric for her own use and that of her household. In exchange for this credit, she offered up eighteen “hostages”—that is, people to stand surety for her should she default. Finally, she stipulated that she would not ask for any extensions on the debt, nor would she leave the district of Girona until the debt was paid.¹

This final provision was the subject of the 1303 hearing that brought Ermessenda’s case into the registers of the chancery of the Crown of Aragon. At that time, it was not Ermessenda de Cabrenys who appeared in the veguer’s court but Berenguer de Devesia, a trained lawyer acting as her procurator and official legal representative. Reaching back to provisions contained in the sixth-century Code of Justinian, Berenguer argued that because his client was a materfamilias—a term of ancient Roman origin that comprehended both sex and status but not motherhood per se²—it was inappropriate for the veguer to compel her to mix with “crowds of men” at the law courts. She was, according to her procurator, prepared to pay the fine or fee (pignora) demanded by the veguer, but would only do so in person at her primary residence in Cartells, or in the town of Santa Eugenia—significantly, both places under her direct jurisdiction, rather than that of the veguer. If the veguer wanted the pignora paid in the city of Girona itself, she had authorized her procurator to do so in her name but refused to appear personally in court, as to do so would be an affront to her status as a materfamilias.³ Berenguer went on to cite another passage from Roman law, this time from the fifth-century Theodosian Code, to support his position,⁴ and even offered to pay the expenses of the officials who might be sent to collect the debt. His stated concern was not the payment itself but the impropriety of his client’s being forced to leave her own home to answer a charge in public.⁵

People in modern Western societies have become used to thinking about the law as something that sets limits to protect individuals and groups from harm and that offers redress when harm occurs. But as the story of Ermessenda de Cabrenys illustrates, the boundaries for acceptable behavior that law and legal systems lay down shape not only an individual’s day-to-day behavior but also his or her sense of where he or she fits into the particular culture that he or she is a part of. Laws can reflect a society’s real standards for behavior, or they may express a cultural ideal, but either way, the subtle cultural framework that they construct may be as influential—if not more so—than the more obvious restrictions on an individual’s behavior.

Gender systems are one of the more pervasive frameworks that the law has had a hand in constructing. Nevertheless, though gender is intertwined with legal culture, the relationship between the two is mutable, either as a product of a given society’s internal legal developments or as a response to external challenges. In order to understand the way that the law and gender interact, though, it is not sufficient to look merely at any society’s legal system in isolation. Laws and legal systems are not born ex nihilo, but rather are the product of sometimes centuries of legal development, often incorporating elements of numerous older systems. The law and legal culture of the later medieval Crown of Aragon are good examples of this tendency. Secular law borrowed from Germanic, Roman, and ecclesiastical legal traditions and assimilated portions of the value systems—including ideas about gender—that shaped those legal cultures.

The fact that the Crown of Aragon was a federated monarchy, composed of several smaller territorial units, each with its own law, presents both challenges and opportunities for historians interested in the formation of women’s legal identity. The multiple and often overlapping jurisdictions and legal systems of the Crown of Aragon, while complex, also allow us to make some more generalized statements about women’s legal identity that a geographic territory with a more unified system might not. The first half of this chapter outlines the legal landscape in the kingdoms of the Crown of Aragon, focusing on how the medieval reception of the Roman and canon law of the ius commune added a unifying element to a disparate legal landscape, in the process contributing to the construction of a multilayered legal identity for women. It would, however, be a mistake to grant sole agency to a depersonalized legal movement. Law only works in conjunction with the individuals and societies who adopt, interpret, and use it. Accordingly, the second half of this chapter moves from the realm of substantive law to consider procedural law, arguing that the gender system laid out in the formal legal framework, while important, was also negotiable, and illustrating the legal mechanisms by which women and their families, friends, enemies, and neighbors could interact with and influence the legal discourse that shaped women’s lives in the later Middle Ages.

The Legal Landscape

The legal environment of the Crown of Aragon in the late thirteenth and early fourteenth centuries was the product not just of internal developments but also of important relations with its neighbors, beginning even before the twelfth-century dynastic union between the counts of Barcelona and the royal house of Aragon.⁶ The first, and arguably oldest, influence on the development of Catalano-Aragonese history was the relationship between the Catalan counties to the south of the Pyrenees and the Occitan counties to the north. The connection between these two regions originated with the Carolingian conquests of the late eighth and early ninth centuries⁷ and persisted long after the Catalan counts became independent rulers of their own territories in the tenth, sharing linguistic, legal, and institutional patterns that differed from the surrounding regions, and crafting marital alliances that maintained the political connection between the two.⁸ The importance of the link between these territories might be best exemplified by the reign of King Pere I (r. 1196–1213), whose political and marital alliances with Toulouse and Montpellier eventually led to his death in the Albigensian crusades at the battle of Muret (1213). According to Thomas Bisson, Pere’s death marked the end of “Catalan dreams of … possibly uniting the people of Catalonia, Provence, and Languedoc.”⁹ Less than fifty years later, Jaume I (r. 1213–76) had ceded to the French king Louis IX claim to all territory north of the Pyrenees, except the county of Rousillon and the lordship of Montpellier, both of which would eventually pass to the Catalan kings of Mallorca.¹⁰ By the beginning of the fourteenth century, the Crown’s ties with the southern French principalities had not been extinguished—Jaume II (r. 1291–1327) would marry women of two different southern French aristocratic houses¹¹—but the trans-Pyrenean relationship in the later Middle Ages was no longer as important as it once had been. Nevertheless, the connections between the two regions persisted in the realm of intellectual developments, especially in the field of law, as the legal faculty of Montpellier brought scholars from the Crown of Aragon into close contact with their counterparts from the Midi.

At the same time that the Crown’s territorial claims north of the Pyrenees were declining, political relations with the neighboring kingdom of Castile began to take on greater import. The two kingdoms had been sometime allies in the reconquest of the peninsula throughout the twelfth and thirteenth centuries, most notably in 1212 when Pere I, as an ally of the Castilian king Alfonso VIII, played an important role in defeating the Almohads at the pivotal battle of Las Navas de Tolosa.¹² But the ongoing reconquest of the peninsula also gave rise to rivalries between the two kingdoms: Jaume I’s conquest of Valencia was to plunge him into conflict with Castile’s Alfonso X, eventually leading him to give up the southern portions of that conquest to his Castilian neighbor. The decades covered in the present volume marked a brief period of peace between the two kingdoms, bookended by the struggle over southern Valencia in the late thirteenth century and war between Pere III and the kings of Castile from 1356 to 1375.¹³

Thus, the last decades of the thirteenth century and the first decades of the fourteenth were a period of stabilization of the peninsular borders of the Crown of Aragon and its relations with its immediate neighbors. During this time, the Catalano-Aragonese monarchs turned their attention to consolidating their authority over their own vassals and to expanding into another region that would become the defining context for the Crown during the later Middle Ages: the Mediterranean. One might well argue that the region that was to become the Crown of Aragon had faced the Mediterranean ever since Roman times, but the Mediterranean context began to take precedence over all others during the thirteenth and early fourteenth centuries. In the century or so between 1229 and 1324, the Catalano-Aragonese monarchs extended their domains into Mallorca, Sicily and southern Italy, and Sardinia.¹⁴ During the early decades of this period of maritime expansion, the Crown of Aragon’s growing influence in the Mediterranean caused no alarm among the other Christian political and mercantile powers, principally because Jaume I confined his actions to the western Mediterranean, expanding in what were seen as defensive actions against the Muslim powers off his coast. This equilibrium was ruptured, however, in 1282 with Jaume’s son Pere II’s intervention in Sicily in the wake of the anti-Angevin uprising known as the Sicilian Vespers. The aftermath of this incident saw a branch of the royal house of Barcelona installed as rulers of Sicily and southern Italy, and also brought Catalan merchants into the eastern Mediterranean in significant numbers for the first time, impinging on the Italian cities’ monopoly on trade with the eastern Mediterranean and routes into central Asia.¹⁵ However, while the presence of Catalano-Aragonese merchants and mercenaries in the eastern Mediterranean troubled relations with some of the Crown’s Italian neighbors, their establishment of important political and commercial footholds in the region intensified an already ongoing process of cultural interchange. As Catalano-Aragonese merchants increased their activity in an international trade that encompassed everything from grain to ostrich plumes to the human cargo of the slave market, the Crown of Aragon also participated in the Mediterranean exchange of ideas in the fields of architecture, painting, and humanist literature during the later Middle Ages.¹⁶

But even before this period of commercial and military-political expansion began, Catalan and Aragonese scholars had been taking part in an intellectual interchange that brought together students and scholars from across Europe: the development of a shared legal culture, based in the Mediterranean, first nurtured in the legal faculties of Bologna and Montpellier, quickly spreading north of the Alps and the Pyrenees to become the foundation of the legal culture of continental Europe as a whole. This shared legal movement—the ius commune—was to bring with it a set of gender ideas that would have serious implications for women in the Crown of Aragon, as well as in other locations throughout the Mediterranean and beyond. But it is important to note that the legal scholars who returned to the cities, towns, and courts of the Crown of Aragon with these new ideas did not simply begin applying the gendered precepts of Roman and canon law to the women they encountered in their courtrooms. Rather, the newly acquired legal education of the judge, lawyer, or notary in question was layered over extant laws that varied from one part of the Crown lands to the next. It is to a brief description of this multilayered legal system that we turn first.

The Ius Commune in the Crown Territories

The legal history of the Crown territories, as elsewhere in Western Europe, underwent an important transition during the thirteenth century. As the Crown territories expanded during the high and later Middle Ages, monarchs of the Crown of Aragon worked to develop institutions that served their own interests, often in opposition to local magnates who at times banded together in uniones to uphold local custom against the encroachments of a new body of law that both undermined customary law and tended to support centralized legal authority.¹⁷ One important aid in the monarchs’ project of centralization was the gradual incorporation of the principles of the ius commune, which would prove an important factor in the way that women’s place in society was defined. The ius commune was a combination of Roman law and canon law, and its widespread influence on later medieval law was the product of the resurgence in formal education in Western Europe during the high and later Middle Ages.¹⁸ The Roman law of the ius commune was drawn from the Roman emperor Justinian’s massive compilations of his own laws, together with those dating from the classical age of Roman jurisprudence in the second and third centuries C.E. These codes became the subject of renewed interest on the part of legal scholars in Pavia and Bologna, most notably Irnerius (fl. 1070–1100), who was the first in a long line of Bologna legal scholars to comment and expound upon the Justinianic corpus.¹⁹

Around the same time that Irnerius and his immediate successors were working on recovering and digesting Roman civil law, a twelfth-century monk known to history as Gratian embarked on his own effort to bring order to the chaos that marked ecclesiastical law before the twelfth century.²⁰ Sometime in the early 1140s, Gratian compiled his Concordantia discordantium canonum—more commonly known as the Decretum—in an attempt not only to bring together the numerous canons in a systematic collection but also to resolve the apparent conflicts that they presented. Over the course of the following century and a half, popes added rescripts addressing specific issues. These “decretals” were collected into volumes that, together with the Decretum, came to be known as the Corpus iuris canonici or “body of canon law.”²¹

The Corpus iuris civilis and the Corpus iuris canonici, commonly referred to together as the ius commune, comprised the two halves of the basic curriculum of the medieval law faculties. It is important to note that no secular court actually applied the ius commune directly; rather, the new law served as a conceptual framework for the creation and interpretation of secular codes – what Peter Stein has called a “universal grammar of law.”²² In the Crown of Aragon, as in much of Europe, the incorporation of the legal principles of the ius commune reached its height during the twelfth and thirteenth centuries, when monarchs throughout Western Europe were drawing up law codes for their realms.²³ But the medieval Crown of Aragon was far from a blank slate when it came to Roman law, the groundwork having been laid during the early Middle Ages, when the peninsula was dominated by Visigothic law, which was heavily romanizing in both content and structure.²⁴ The persistence of Roman law within the Crown territories throughout the tenth and eleventh centuries became most evident when portions of Roman law were incorporated into the twelfth-century redaction of the Usatges of Barcelona, a compilation of “feudal” customs and usages to which the compilers not only added excerpts from the Visigothic Liber iudiciorum that it was meant to complement but also cited collections of or commentaries on Roman law, such as the sixthcentury Romano-Visigothic Breviary of Alaric, the Exceptiones Petri (an Italian commentary on Roman law roughly contemporaneous with Irnerius), or even Justinian’s Corpus iuris civilis itself.²⁵

The continuing influence of Roman legal ideas throughout the early Middle Ages meant that, in Catalonia at least, the ideas of Roman law fell upon fertile soil. Of all the peninsular kingdoms that would form the nucleus of the Crown of Aragon, Catalonia experienced the earliest and most rapid incorporation of the ius commune, due in part to geographic proximity to and commercial ties with the Italian communes that were the crucible of the Roman law revival and to the proximity of Montpellier, an important early center of legal scholarship in the Midi. Judicial and notarial activity further increased the Roman flavor of law in the Crown of Aragon during the thirteenth century, by which time Roman law (either verbatim or paraphrased) was common in new legislation throughout the Crown territories, even in redactions of local customs;²⁶ by the fourteenth century, Catalano-Aragonese jurists increasingly invoked Roman law in their deliberations and verdicts.²⁷

The influence of the ius commune on the law of the Crown of Aragon was not limited to Catalonia. In the kingdom of Aragon, Roman legal ideas were incorporated into the legal culture of that kingdom more slowly than in other regions of the Crown.²⁸ Nevertheless, the ius commune had made its way into the legal culture of the kingdom of Aragon by the second half of the thirteenth century, culminating in Jaume I’s approval in 1247 of the bishop of Huesca Vidal de Cañellas’s systematic collection of customs, judicial rulings, and royal laws that came to serve as the definitive version of the Fueros of Aragon—a collection that resembled Justinianic Roman law in both organization and content.²⁹

The thirteenth-century conquest of the territories that would become the kingdom of Valencia added yet another dimension to the legal landscape of the later medieval Crown of Aragon. The legal history of early postconquest Valencia at first echoed that of New Catalonia, as the exigencies of conquest and settlement required concessions of privileges to individual localities.³⁰ Much of this early law was based on foundation charters conceded by Jaume I, but the most common source of law in the very early settlement period was the Fueros of Aragon, brought by the Aragonese nobles who had been instrumental in the conquest and early settlement of the newly conquered territory.³¹ But the legal and political terrain shifted when Jaume I declared Valencia an autonomous kingdom and gradually imposed the laws of its royal capital—the 1240 Furs de Valencia—on the kingdom as a whole. These laws bore a much closer relationship to those of Catalonia than to the Aragonese fueros and, as such, were heavily influenced by the ius commune, incorporating adapted extracts from the Digest and the Corpus iuris canonici, and sometimes reproducing verbatim parts of Justinian’s Code.³²

The legal diversity of the Crown of Aragon was further complicated by the Crown’s numerous Jewish and Muslim communities that, at least theoretically, maintained a degree of judicial and political sovereignty, although royal protection came at the price of dependence on continued royal favor. As a rule, the Muslim and Jewish aljamas (the corporate entities that corresponded to these religious minority districts) and their officials adjudicated internal disputes according to their own law. Among the Crown’s Jews, rabbinical authorities generally only permitted bringing internal affairs before the Christian courts when the fear of one of the parties threatened to subvert the judicial process within the aljama,³³ and Muslims in the Crown territories usually only ended up in Christian courts in cases of appeals, or when they were involved in a legal dispute that crossed confessional lines.³⁴ Christian authorities did intervene in both the financial and judicial affairs of these ostensibly autonomous communities, and the level of the aljamas’ practical autonomy ebbed and flowed over the decades and centuries of the high and later Middle Ages.³⁵ Nonetheless, the fact that cases internal to the Islamic and Jewish population in the Crown of Aragon were theoretically the province of that aljama’s own officials meant that, with the exception of cases involving female slaves or interconfessional sexuality, relatively few cases involving Muslim or Jewish women came before the royal courts.³⁶ On the other hand, we can assume that those that did were in some way important to either the monarchs’ maintenance of their own sovereignty or their conceptions of women’s roles and therefore merit examination.

As the Catalano-Aragonese presence in the law faculties at Bologna and Montpellier increased during the thirteenth and fourteenth centuries and with the foundation of an indigenous studium generale in the Catalan town of Lleida in 1300,³⁷ the products of this education increasingly invoked Roman law in their deliberations, documents, and verdicts upon their return to the Crown of Aragon to serve as lawyers, jurists, and notaries.³⁸ But the growing influence of this “foreign” law did not pass without causing alarm in some quarters. Roman law was popular among the educated class of jurists but faced resistance from lay magnates who feared that it would erode traditional privileges linked to status and land tenure. Resistance was perhaps strongest in the kingdom of Aragon, where the nobles who had long had an uneasy relationship with the Barcelonan monarchs³⁹ saw the new law as a threat to their legal and territorial sovereignty and, in the thirteenth century, went so far as to lodge a formal complaint with King Jaume I about the preponderance of Romanists in his court who handed down rulings contrary to their own laws.⁴⁰

Possibly in response to his Aragonese magnates, or possibly merely as an affirmation of his own legal sovereignty, Jaume I himself twice (in 1243 and 1251⁴¹) prohibited the direct application of the ius commune in Crown courts.⁴² However, royal authorities seem to have enforced these edicts sporadically at best. In fact, many of the thirteenth-century codes specifically mention recourse to Roman law as a supplementary law when other legal traditions do not adequately treat a subject under analysis. In Catalonia, the Costums of Lleida, for example, included Roman law among the many laws that might be cited—admittedly, only after the Costums themselves, the royal privileges, the Usatges of Catalonia, and even Visigothic law. Likewise, the Costums of Tortosa proposed an order of citations that proceeded from Costums to royal Constitucions and then to the ius commune. And in the kingdom of Valencia in 1309, Jaume II issued an edict allowing the justicia to use the substantive law of the ius commune to resolve any legal issue not directly addressed in the Furs.⁴³ Additionally, jurists throughout the Crown of Aragon were permitted recourse to the principles of aequitas (that is, justice as perceived in human relations but not set down in the law of a given region) in their decisions—a provision that seem designed to allow these educated jurists to apply basic principles of the ius commune to their decisions.⁴⁴

Given these opportunities to use the principles of the law in which they had been trained, legal professionals in the later medieval Crown of Aragon played an important role in the growth of the influence of the ius commune. By 1359, when Pere III (r. 1336–87) required advocates, judges, and assessors to be familiar with the law of either the Corpus iuris civilis or at least the Corpus iuris canonici,⁴⁵ the ius commune had permeated the juridical atmosphere of Catalonia, from custom and feudal law to royal decrees, with jurists even known to invoke the ius commune in preference to Catalan laws.⁴⁶ Even in the kingdom of Aragon, judges incorporated Roman law and legal principles in the observancias (thirteenth- and fourteenth-century Aragonese jurists’ rulings and interpretations of the Fueros). These observancias gained authority by their continuous use and, once they had been written down during the second half of the thirteenth century, eventually equaled the Fueros themselves as a source of law.⁴⁷ Even the royal law of the Constitucions could be rendered invalid if it ran contrary to the ius commune, and the first compilation of the Constitucions followed the systematic order of Justinian’s Code.⁴⁸

Gender and the Ius Commune

As both Roman and canon law made their way into the legal systems of the Crown of Aragon, the form and content of the gender assumptions that underpinned many of these laws were absorbed along with them, lending a specificity to the conceptual vocabulary that women had to use to define themselves when litigating. One area in particular where the influence of the Roman law was notable was in questions of women’s legal agency and their perceived ability to handle their own affairs competently. Womanly weakness (fragilitas) and incapacity (imbecilitas) were two of the most commonly cited gender ideas in classical Roman law; these concepts encouraged the courts to treat women as permanent minors when it came to legal matters.⁴⁹ This characterization was not, however, absolute. The influential classical jurist Gaius (fl. 130–180) noted that the tutelage of adult women was, at his time, rationalized in terms of their “light-mindedness” (animi levitatis),⁵⁰ but he also argued against this apparently common idea, calling it “specious, rather than true.”⁵¹ As the gradual diminution of the institution of guardianship for women in the late Republic and early Roman Empire had resulted in ever-increasing numbers of Roman women who were independent legal persons not under the tutelage of a paterfamilias, the idea of women’s innate legal incapacity did not mesh well with the observable fact that women did handle their affairs competently.⁵² Suzanne Dixon has argued that guardianship of adult women was only ever about property transmission, and that late republican and early imperial ideas about women’s incapacity were the result of Roman jurists’ efforts to explain a system of unknown origin. The only analogy available to them was the tutorship of minors, which was manifestly about legal incapacity.⁵³ Nevertheless, the fact that Gaius apparently argued against a perception common in his day suggests that, for legal writers, the matter of women’s light-mindedness (which we might oppose to the Roman idea of gravitas or “weightiness” necessary to the public life of Roman men) was very much an open question.⁵⁴

While the question of a woman’s relative capacity in legal matters remained open to debate, the idea of the inherently incapable woman constituted enough of a presence in Roman legal thought to combine powerfully with another Roman gender idea: natural female “modesty” or “shame” (verecundia). Judith Evans Grubbs has argued that this idea originated not in legal sources but in the broader Roman culture, and only later made its way into law.⁵⁵ Whatever the origin, by the second and third centuries century C.E.—that is, the “classical” period of Roman jurisprudence—the idea of female modesty had taken firm root in the legal literature. According to Ulpian (d. 228), another important classical jurist, women should not involve themselves in the lawsuits of others in a way that was “contrary to the modesty suitable for their sex, so that women not discharge men’s duties.”⁵⁶ A woman might act on her own behalf or on behalf of a minor, but it was up to the praetor to discern that she had not gone “beyond the modesty of her sex (sexus verecundia)” before he allowed her to lodge an accusation,⁵⁷ and restrictions on women’s participation in court were couched in explicitly gendered terms, “so that women not rush irreverently into scorn of their matronly honor on the pretext of prosecuting a lawsuit, and so that they not be compelled to be present at the gatherings of men or at trials.”⁵⁸

We are thus left with an ambiguity in Roman law’s legacy to medieval women. On the one hand, classical jurists recognized that women of their day could and did act on their own in the public forum of the courts, that they could sue on their own behalf, and that they could answer charges lodged against them. On the other hand, powerful ideas about women’s intellectual weaknesses and general vulnerability to male influence combined with cultural norms about appropriate female behavior to create a climate inimical to respectable women’s participation in the public forum of the law courts.

Canon law added yet another dimension to the gender ideas that medieval judicial officials had to work with.⁵⁹ Some gender ideas in the Corpus iuris canonici overlap with those of the Romans. Take, for example, the idea of female fragilitas and imbecilitas. Gratian, while he does not use these precise words, employs the same idea, declaring that “man (vir) is so-called not because of his sex but because of his virtue (virtute) of soul; woman (mulier) socalled not because of the sex of her body but because of her softness (mollitie) of mind.”⁶⁰ However, Gratian and other canonists were less concerned with any neo-Aristotelian ideas about women’s inborn qualities than with biblically founded ideas that reinforced a gender hierarchy that reflected a divine plan. According to Gratian, women’s connection to Eve’s original sin placed all women in a condition of servitude.⁶¹ This condition, however, is phrased less as a punishment than as the natural order of things: Gratian cites Paul’s analogy between man’s headship of woman and Christ’s headship of the church⁶² and shrugs off Old Testament examples of women in positions of public authority as irrelevant because the “old law” had been replaced by the perfectione gratiae brought about by Christ’s sacrifice, so that many old things no longer applied.⁶³ Although Gratian argued in at least one place for the complementarity of the sexes by asserting that “man is the head of woman; woman the body of man,”⁶⁴ his belief in the self-evident headship of male over female was further reinforced by the decretists who glossed his work: Johannes Teutonicus (ca. 1170–1245) noted that woman was created from man and should therefore be subject to him,⁶⁵ and Rolandus (fl. late 1150s) deemed women’s subordinate status to be “manifestly proved.”⁶⁶

The decretals contained similar assumptions about women’s basic nature. An example from the early thirteenth-century chancery of Pope Innocent III may serve to illustrate the point: in his opinion on a case involving a female monastery in the diocese of Utrecht, Innocent mentions the fragilitas of the women in question. In the context of the decision as a whole, this is a passing mention, offered without comment,⁶⁷ suggesting that female weakness or incapacity was even by the early thirteenth century taken as a matter of course by men trained in the law. These assumptions were especially critical when the particular decretal concerned women’s actions in court. There seemed to be some debate, for example, as to whether it was legally permissible for women to give testimony in ecclesiastical court. Gregory IX, in his Liber extra, cites Isidore of Seville’s threefold categorization of who might and might not serve as legal witnesses:

Regarding witnesses: condition, nature, and manner of life should be considered. Condition: that they be free, not slave, because sometimes a servant may be pressured by his master to suppress the truth. Nature: that they be male, not female, for females always produce varying and changeable testimony. Manner of life: if guiltless and irreproachable of deed. But where a good life is lacking, trustworthiness is found to be wanting.⁶⁸

Isidore’s dismissal of women’s testimony as “varying and changeable” may hearken back to classical Roman notions of female levitas, thus reinforcing what may have been at the time only a minor note in the Roman legal assumptions about women. Yet canonists also recognized that there were certain situations in which a woman’s testimony in particular could be not only valuable but even indispensable—in cases concerning the conduct of local clergy,⁶⁹ for instance, or to discern impediments to marriage.⁷⁰ And Pope Boniface VIII (r. 1294–1303) seemed to take for granted that women would regularly be giving testimony when he specifically stipulated that women could not be compelled to appear personally in court, whatever the cause, and that if their testimony was necessary, they might pay the expenses of a judge to go to them and take their testimony in situ.⁷¹

We might note that Boniface’s opinion is predicated on a specific gender assumption of matronly modesty; he begins, “Women, for whom it is fitting neither to wander about, nor to mix with the crowd of men.”⁷² That this decretal substantially reproduces the language of the earlier Roman legislation discussed at the beginning of this chapter indicates that, by the late thirteenth century when Boniface was pope (coincident with the early part of Jaume II’s reign in the Crown of Aragon), principles of Roman law, including their assumptions about gender, were already well integrated into the legal culture of the popes and their curia who would be making canon law. The fact that Boniface, like Innocent before him, felt that he did not need to elucidate such statements about women’s legal nature suggests that an assumption of female weakness or incapacity was something that both he and his audience took for granted. That audience would have been made up primarily of men schooled in the legal faculties of the medieval universities, and as these men returned to their homelands, they brought with them a new conceptual vocabulary with which to talk about the issues encoded within that law and incorporated those ideas into the law codes that they had a hand in compiling or adjudicating.

Gendered Legal Assumptions in the Crown of Aragon

By the late thirteenth and early fourteenth centuries, the ius commune constituted a substantial presence in the legal culture of the Crown of Aragon and exercised an accordingly profound influence on the construction of legal ideas about women. That these ideas were in the air during the thirteenth century when many of the law codes of the Crown territories were being formulated suggests ways in which to read gender ideas as they appear in the written law of the composite monarchy. The natural subordination of women to men that Gratian and his successors spoke of appears in Catalano-Aragonese law often enough to make its influence on legislators apparent. The assumption of male headship is most clearly visible in the many laws governing marital property (an issue that will be discussed more fully in Chapter 2) that flatly state that part of the husband’s responsibility is to support his wife financially, an obligation referred to as the “burden” (onera) of matrimony.⁷³ Since the same laws assume that part of the property that he would use to bear this burden remained the legal property of his wife, it seems clear that, in economic terms at least, lawmakers envisioned marriage as an unequal partnership between male and female, with the wife largely dependent on her husband.

A much more obvious contribution of the ius commune to the gendered legal assumptions of the medieval law codes of the Crown of Aragon is the principle of female weakness or incapacity. The Furs of Valencia state this principle most baldly when they mandate the need to protect women’s marital property, asserting that a husband could not encumber the dotal goods without his wife’s consent because “the fragility of the female sex should not be turned against her or result in the diminution of her goods.”⁷⁴ The assumption of female vulnerability also influenced penal law: the Fueros of Aragon, “desiring to have compassion for the female sex,” stipulated that a woman might not be imprisoned for any debt or fine arising from a civil offense, unless she had first liquidated her goods in an attempt to pay off the debt.⁷⁵ The Furs of Valencia are even more specific on the issue of penal law and gender, opposing the imprisonment of women except for the gravest crimes. If royal officials had to imprison a woman, the Furs recommended that she be housed separately from the male inmates. But the Furs also urged judges to consider substituting corporal or pecuniary penalties for imprisonment,⁷⁶ suggesting that the fragility or weakness alluded to in the law codes was based on an assumption of women’s sexual vulnerability, rather than on a reluctance to administer punishment that would be detrimental to their physical well-being.

These assumptions of female dependence and fragility dovetailed with the assumption of natural womanly modesty. In the Code of Tortosa, we see an echo of a principle present in both Roman and canon law, that women should not be compelled to appear personally in court for any contract that they signed with their husbands, whether or not their husbands were present.⁷⁷ The Tortosa law contains no specific or even implied reference to matronly modesty, but it seems likely that this law, so similar to its Roman and canonical antecedents, was adopted under similar assumptions, or at the very least with the Roman precedent in mind.

The principle of female dependence extended to social status as well. The Constitucions of Catalonia, to take one example, linked a woman’s social condition to that of her husband. If a woman had no husband, past or present, her status was determined according to that of her nearest male relative.⁷⁸ This does not, however, mean that women had no legal personality of their own. One Valencian statute stipulated that women were not to be held responsible for their husband’s crimes,⁷⁹ implying an understanding that spouses had independent legal (and moral) agency. But as Thomas Kuehn has pointed out, even though we may take as a given that legal ideas of female subordination did not preclude female legal personhood, a medieval woman’s legal identity was still in many ways contingent on an assumption of male headship of women.⁸⁰

Creating Legal Discourse: Lawyers, Litigants, and Neighbors

The ius commune thus added not one but many elements to the question of women’s legal personality in the Middle Ages. It was not monolithic; rather, it reflected an ongoing debate about women’s roles in the society that produced those legal traditions. This debate would be carried on in the later medieval societies that adopted those traditions and reflected in the rulings and writings of the ius commune-trained jurists who adjudicated cases involving women; it was also reflected in a broader legal culture that female litigants themselves helped to shape.

The Courts

Our analysis of women’s interaction with the gender system encoded in the ius commune and the Iberian codes it inspired might well begin at the courtroom door. But which court? By the beginning of Jaume II’s reign, female litigants (or men litigating against them) in the Crown of Aragon were confronted with numerous options. In many cases, the best choice would not have been a secular court at all but the local ecclesiastical court. Canon law, especially sacramental law, touched on the daily lives of all medieval Christians, and since marriage was one of the most heavily regulated sacraments in the later Middle Ages,⁸¹ a large number of cases involving women and marital matters—especially petitions for ecclesiastical separation—would not have appeared in the records of the secular courts. On the other hand, traces of these cases appear in the ancillary suits over sex, violence, or property that were the province of the secular courts. Furthermore, it would be a mistake to conflate women’s litigation with marriage litigation. As we shall see in the following chapters, while disputes or agreements with husbands often formed part of cases involving women, marriage per se was not always central to the case, nor were all female litigants married. Moreover, in cases not directly touching on matters of sacraments, theology, or religious practice, the secular courts of the Crown of Aragon claimed primary jurisdiction, regardless of the sex of the litigants.⁸²

For all three major territories of the Crown of Aragon, the ultimate arbiter of secular justice was the king himself. The highest court in the joint realms of the Crown of Aragon was the royal Audiencia, an assembly celebrated every Friday.⁸³ Justice in the Audiencia was administered personally by the king or, if he was away, by his lieutenant-general.⁸⁴ Litigants with enough money or influence might have access to the Audiencia as a court of first instance, but the Audiencia also served as the final court of appeals for lower courts in all three realms.⁸⁵ Additionally, records indicate that evocation—the practice of a superior court unilaterally “calling up” a case from a lower court—became more common during the reign of Jaume II. Royal authorities’ stated reason for evoking lower court cases was the desire to safeguard the correct administration of justice, especially in cases where one party was at a disadvantage. To this end, the Audiencia declared itself protector of dependents, widows, the poor, and other miserabiles personae—a category interpreted broadly to include students, travelers, merchants, and others whose expatriate status meant that they lacked the full protection of local law.⁸⁶ In addition to the Audiencia’s regular meetings, the lieutenant-general also held a special hourlong session every afternoon for cases involving minors, widows and the poor, and civil cases involving sums of fewer than twenty lliures (400 sous).⁸⁷ These special jurisdictions meant that a substantial body of cases involving women in particular could, at least theoretically, end up being heard in the highest court in the land.

It was, however, a general principle of jurisdiction that both civil and criminal cases should initially be tried in their own locality. In earlier centuries, this probably would have been a seigneurial court or the court of a locally elected official,⁸⁸ but by the late thirteenth century, it was likely that a woman who lived near a town of any moderate size in the Crown of Aragon would be appearing in the court of a royally appointed judicial representative. In the counties of Catalonia, a litigant’s first stop, if he or she lived in the confines of a town or village, would probably be the court of the batlle.⁸⁹ By the reign of Jaume II, the batlles were judicial officials who represented royal interests in a given town or village, usually as a counterweight to a locally elected council. The batlle was judge-ordinary for his town or village and the immediately surrounding territory, and was empowered to adjudicate both civil and petty criminal cases, as well as cases between Christians and Jews.⁹⁰

The batlle could not, however, judge persons of high status or cases that involved bloodshed (either in the commission of the crime or its punishment). For these cases, as well as those originating outside the geographic boundaries of a batllia, a litigant’s court of first instance would be the court of the royal official known as the veguer. The vegueries encompassed broader swaths of territory than the batllies, generally corresponding to the boundaries of older counties or seigneurial jurisdictions. The veguer’s competence was also conceptually broader than that of the batlle, comprehending all types of criminal and civil cases, litigants of high and low estate, and imposition of fines, corporal punishments, or imprisonment. In essence, there were few limits to the type of cases the veguers could hear, which rendered them the most important source of secular justice in their territories.⁹¹

Both veguers and batlles might be assisted in their duties by semi-independent lieutenants (sub-veguers and sub-batlles) who reported to them but who were empowered to act on their own authority in judicial and administrative matters.⁹² Likewise, as the offices of veguer and batlle were political appointments that did not require any particular judicial training, each veguer or batlle would have as a member of his staff a legal expert (iurisperitus) who had received formal legal training and with whom the veguer or batlle was required to consult in deciding cases. This consultant would be the one to try the case and evaluate the evidence, though pronouncing the verdict remained the prerogative and duty of the veguer or batlle himself.⁹³

The kingdoms of Valencia and Aragon possessed similarly overlapping local and regional judicial institutions and officers. The kingdom of Aragon had its own system of bailes (corresponding to the Catalan batlles) and merinos, with a dozen merinados located throughout the kingdom by the late thirteenth century and numerous smaller bailíos within the larger merinados. But unlike Catalonia, where veguers and batlles exercised moderate to broad judicial and administrative authority, the function of the Aragonese merinos and bailes was primarily administrative. The judicial responsibilities of these two officials were more limited than those of their Catalan counterparts, generally restricted to trying cases involving royal properties, collecting fines or settlements, and arresting defaulters on judicial fines. Merinos might also detain malefactors but only in response to a specific royal order and not as a function inherent in their office.⁹⁴ Most civil and criminal cases in the later medieval kingdom of Aragon—those that did not touch directly on royal properties or officials—would have been heard by a justicia, an official charged with hearing both civil and criminal cases in a given locality. The Aragonese justicias were technically royal appointees but were drawn from the caballero class of a given locality and so tended to serve local political interests and the prohombres of their towns—a tendency that was at its strongest during the last two decades of the thirteenth century, when the Aragonese uniones temporarily won extraordinary concessions of political and judicial autonomy from the king.⁹⁵

Another official of the Aragonese judicial system who appears frequently in the following pages was the zalmedina, an office that was peculiar to the districts of Zaragoza and Huesca. In Zaragoza, where there was no justicia, the zalmedina seems to have been the major judicial official, probably exercising jurisdiction similar to that of justicias in other territories. The situation is less certain in Huesca, which had its own justicia, but it is clear that the office was more than merely honorific, as the zalmedina is the first administrator named in Pere II’s 1278 privilege to the city of Huesca. When we take into account that the zalmedinas, unlike other Aragonese judicial officers, were elected to their positions by the town’s leading citizens, rather than appointed by the king, and were subject to regular local assessment, it is reasonable to conclude that these officials were the product of special concessions won by local factions in these two important urban centers. Nevertheless, the zalmedinas do appear regularly in the cases in the following pages, indicating that their judicial authority was on a par with that of the justicias elsewhere in Aragon or with the veguers and batlles of Catalonia.⁹⁶

Finally, the administrative apparatus of justice in the kingdom of Valencia was Aragonese in form but Catalan in substance, reflecting the tension between the interests of the early the Aragonese seigneurial settlers on the one hand and the monarchs’ rapid centralization efforts on the other. Royal justice in Valencia was primarily the responsibility of bayles, royal judicial and administrative officers answering to the bayle general, who himself answered to no one but the king. Originally appointed to protect the royal patrimony, the bayles’ legal competence was rooted in civil cases, but the bayles also claimed jurisdiction over all civil or criminal cases that touched on royal interests or over the strategic territories of sea and coastline, as well as all cases where both parties were Jews or Muslims.⁹⁷

The bayles’ increasingly broad jurisdictional claims brought them into frequent contact with another important group of judicial officials: the justicias. Created by Jaume I to mediate conflicts between urban residents and the king, the Valencian justicias were charged with hearing and judging both civil and criminal cases throughout their town and its surrounding district “with the counsel of the wise men [probi homines] of the city” and aided by an assessor trained in law. Valencian justicias had jurisdiction over cases between Christians and Jews or Muslims, and their mixed criminal and civil jurisdiction eventually resulted in the office being split, in 1321, into more specialized offices that did not appear elsewhere in the Crown territories at that time: a justicia criminal, a justicia civil, and eventually a justicia de trescientos sueldos. Like the Aragonese zalmedinas, Valencian justicias were held accountable to the cities and towns that were their seat, serving only one-year terms, after which they were required to present an accounting of their actions for audit. And also as in Aragon, the Valencian justicias were drawn from the nobility or the urban patriciate, and their authority was closely bound to the municipal councils; the justicias therefore tended to represent those interests, acting as a counterbalance to the authority of the king’s bayles.⁹⁸

The jurisdictional map in Valencia was further complicated by the presence of the office of procurator general (later governor general), the monarch’s leading judicial and administrative representative for the kingdom of Valencia as a whole. The procurator general was assisted by lieutenant procurators stationed throughout the kingdom who handled judicial affairs in much the same way as the veguers in the Catalan territories. The procurator was supposed to have jurisdiction primarily in cases involving the public good—that is, those cases touching on matters of public order, the defense of borders and of royal property, the defense or prosecution of royal officials, and certain high crimes such as treason, sodomy, counterfeiting/forgery, or heresy.⁹⁹

Procedure: Civil, Criminal, and Inquisitio

The cases dealt with in the following chapters come from a variety of these courts—courts of veguers, batlles, justicias, procurators, and even the royal Audiencia. But since these were either arms of royal justice or subject to appeal in the royal courts, and since, by the reign of Jaume II, the royal courts had adopted the procedural rules of the ius commune, a litigant would be subject to a similar process no matter which of these courts her case was heard in.¹⁰⁰ And while Romano-canonical procedure prohibited a woman from acting in court on behalf of anyone but herself or her minor children, women did regularly engage with these procedures on their own behalf as plaintiffs, defendants, and witnesses.

The procedure that litigants and witnesses would be subject to in the royal courts of the later medieval Crown of Aragon is well illustrated by a fourteenth-century investigation of a charge of official misconduct, conducted in the court of Bernat Dalcamora, the lieutenant procurator in the Valencian town of Vall d’Uixó. Although the elements of procedural law varied slightly throughout Western Europe and over the course of the high and later medieval centuries, a civil suit usually began when a plaintiff presented to the judge either an oral or a written complaint (the libellus). In 1302, Maria, daughter of Miquel de la Serra, appeared in person to lodge such a complaint against the justicia of the town of Cabanes d’Arc, Bertran Maçquefa. According to Maria’s accusation, Bertran had, with the assistance of his companions Bernat Maestre, Bernat de Bonet, and Bertoli Maçquefa, set upon her one Sunday after mass, publicly denouncing her as a whore. They then proceeded to administer a public beating, pulling her hair, hitting her with their fists, and kicking her. Eventually, they expelled her from the town, prohibiting anyone from giving her aid or shelter, on pain of a fine of sixty sous.¹⁰¹

If the judge in the case deemed the complaint worthy, the court’s next action would be to summon the defendant and give him or her the opportunity to file a formal response to the articles of the libellus. In this particular case, the lieutenant procurator summoned all four defendants into his presence separately, where he had the denunciation read out to them. All four exercised their right to respond to the charges, and all four individually denied that anything Maria said was true.¹⁰²

This complaint-and-response was all part of the pretrial phase, designed to help the judge formulate the charges around which the actual trial (litis contestatio) would revolve. The trial itself began with both parties taking calumny oaths, that is, swearing that they were litigating for legitimate reasons, not out of malice, and that the testimony and evidence they would present was genuine. The plaintiff then presented his or her charge and the defendant his or her response to the charges, usually in a written form that incorporated the many statements and revisions made during the earlier pretrial phase. In this case, the lieutenant procurator presented a written summary of the articles (capitols) that he would be deciding in the course of the investigation. The articles in Maria’s case (condensed here for clarity) were as follows: that on the specified day, in front of the church of Santa Maria, Bertran Maçquefa, acting in his capacity as justicia, had confronted Maria and told her that she was to be expelled from the town, apparently without reason; that Bertran had publicly denounced her as a whore, saying: “muyre, muyre, la bagassa”; that he had taken her by the hair and thrown her to the ground, striking her many times with both punches and kicks; that his accomplices had also punched and kicked her; that she had run off and hidden in the house of Alexander de Foix, for fear that the men would murder her; that Bertran had gained the office of justicia by corrupt means; that all four men had broken down the door of the house where she was hiding and, on Bertran’s order, dragged her out and continued to beat and kick her and pull her hair in the public thoroughfare before finally expelling her from town. At the conclusion of this summary was Maria’s affirmation that all these things were common knowledge (fama publica) in the town of Cabanes, and beyond.¹⁰³

Standard civil procedure gave each of the defendants the opportunity to respond to the charges, which, again, all four defendants in this case categorically denied.¹⁰⁴ The next step was for the court to consider the evidence. The day after the charges in this case were read and answered, the procurator’s court heard the testimony of fifteen witnesses—twelve men and three women. Most of them testified to Maria’s public expulsion from town, some to the blows, and more to the fact that they had heard Maria’s loud cries.¹⁰⁵ After this, if the case had documentary evidence—for example, wills or deeds of property sale—these would be entered into evidence.¹⁰⁶ Since, however, the parties in this particular case had no documentation, the lieutenant procurator announced that he was terminating the investigative phase and was sending a written record of the claims and witness statements to both the parties involved and to the procurator in the city of Valencia. At the conclusion of this trial transcript, the lieutenant procurator notes that he is summoning the parties to his court to give their final testimony.¹⁰⁷

We know from procedural manuals that this phase of the procedure would have been followed by oral arguments, the lieutenant procurator’s deliberations, and his final sentence.¹⁰⁸ But our information about this particular trial ends here: unless there was a procedural misstep or an appeal that would have occasioned further correspondence, the verdict rendered in a lower court would have been transmitted to the parties in the case and possibly preserved in a local archive. Since records from these local courts survive in only very small numbers, we rarely see the final stages of the process in action. We can, however, use this trial, combined with the more general observations on Romano-canonical procedure, to make a few observations, First, we see that the principles of the ius commune had penetrated into the judicial atmosphere, not just in the realm of substantive law but also in matters of procedure. We may note the care with which the lieutenant procurator outlined the steps he was taking, mentioning at one point that he was acting specifically according to the Furs of Valencia¹⁰⁹ and in another place that, according to the Furs, each judge ought to diligently seek out the truth, not only of the facts of the case but also of the quality of the testimony that he receives.¹¹⁰ It is clear, then, that royal judicial officials like Bernat Dalcamora were using Romano-canonical procedure, even if only as mediated through regional or local law codes. Lawyers for plaintiffs and defendants were also wise to familiarize themselves with the complexities of Romano-canonical procedure, not just as an aid to navigating the process laid out for them, but also because they could take advantage of procedural nuances to aid their clients. In many of the cases analyzed in the following chapters, a litigant or his or her representative might use knowledge of procedure as a delaying tactic, leveling numerous exceptions to charges in the pretrial phase and producing long lists of witnesses for the trial phase, along with equally extensive lists of questions to be put to each. In cases involving poor litigants—for example, the abandoned married women treated in Chapter 2 who were suing for return of their dowries—the length of a trial could delay a financial settlement to the point where it became meaningless. In such cases, royal judicial authorities sometimes exercised their option to apply a summary procedure, which deemed the pretrial libellus unnecessary and allowed accusers to bring their complaints orally. Judges in these cases could reject exceptions and other measures introduced to produce delays and could limit both the number of witnesses and the length of depositions.¹¹¹

We can also observe from the progress of Maria’s case that a woman’s interaction with the judicial system, even if begun in her immediate neighborhood, might eventually take her far beyond her own locality: consider that Maria’s complaint was against a local justicia in the town of Cabanes; that she lodged her appeal with a second-tier royal official in the town of Vall d’Uixó, some thirty miles to the south; and that he in turn reported to the procurator, whose seat lay in the city of Valencia, some thirty miles farther still. This meant that, while an individual woman’s ability to draw on local associations and support networks could be critical (as will be discussed below), the outcome of the case, as it moved progressively farther from a litigant’s home territory, would come to depend ever more heavily on how well she could adapt her legal narrative to the conceptual vocabulary and unwritten assumptions of the law and its agents.

Women who entered into criminal court underwent an experience similar to those undertaking civil litigation. With the exception of Valencia after 1321, the same courts heard both civil and criminal cases during this period,¹¹² though different jurist-consultants might specialize in different types of cases, especially in larger jurisdictions that could support more than one judge. Even procedure could be similar: although the Roman law of the Corpus iuris civilis distinguished between civil and criminal procedure, early canon law made no clear distinction between the two. Later jurists agreed that a more stringent standard of proof needed to be applied in criminal cases; otherwise, differences in the actual ordo were slight, and even when medieval commentators began to draw distinctions between criminal and civil procedure, there were effectively few differences until quite late.¹¹³

Although there were a number of similarities between the criminal and civil procedures in the courts of the Crown of Aragon, thirteenth-century procedural developments led to at least one significant difference: by the reign of Jaume II, litigants in criminal cases might find themselves involved in cases tried under the procedure known as inquisitio. The word “Inquisition” is most commonly associated with Church-sponsored programs in the medieval and early modern periods to find and extirpate heretics and relapsed converts from Judaism.¹¹⁴ But we might also understand inquisition, uncapitalized, more generally: as a set of legal procedures developed during the high and later Middle Ages to prosecute crimes for which there was insufficient direct evidence to produce an accuser.¹¹⁵ Under normal medieval procedural rules, prosecuting certain crimes could be difficult, as courts could find a defendant guilty only if either he confessed to his crime or if an accuser could provide “full proof” consisting of the sworn testimony of two witnesses who had either seen or heard the crime being committed.¹¹⁶ Procedural law as taught in the law schools of the high and later Middle Ages required proof “as clear as the light of day” for a conviction in criminal trials, and only confession of the accused or uncontradicted testimony by two witnesses to the crime met this requirement.¹¹⁷

While the foundational principles for inquisitio dated back to at least the Roman Empire, the medieval elaboration of inquisitorial procedure was largely a response to the “occult” crimes of clerical indiscipline, especially clerical sexual incontinence.¹¹⁸ Since these crimes were hidden, their prosecution was initiated not by a libellus but by denunciation, persistent rumor, or open scandal, and prosecuted ex officio by the court officials themselves, who assembled the evidence, interviewed witnesses, and interrogated the defendant. A small group of decretals by Pope Innocent III from around the year 1200 laid the foundations for the medieval version of this procedure. The first, Inter sollicitudines nostras, asserted that, even if no complaining accuser had come forward, a combination of infamy, open scandal, and seriousness of the crime could require that a clergyman suspected of an offense undergo a canonical purgatio.¹¹⁹ The second, Licet heli, specified ways in which specific procedures could be matched to different types of complaints and when and how to launch the inquisitio. In the cases of public infamia, where the crime was serious enough that a guilty verdict would result in canonical sanction, questioning of witnesses as to the truth of the rumors could—and should—be undertaken.¹²⁰

Even though inquisitio remained an extraordinary procedure,¹²¹ it made the transition from ecclesiastical to secular courts during the thirteenth century, where it was employed when no direct witness could be found, despite a persistent rumor of criminal activity. This made inquisitorial procedure ideal for prosecuting certain types of criminal litigation involving women, such as rape and adultery. However, although the essence of inquisitio was the fact that it could be launched ex officio, without a complaining witness, we should not understand “inquisitorial procedure” as a relationship strictly between the judge and the accused. Licet heli also clarified that the judge was not the accuser; rather, it was the rumor itself that “accused” the perpetrator. The trial was, in fact, initiated by public opinion, and the first job of the judge was to conduct a preliminary inquest to establish the truth of the rumor, before he could proceed to investigate the charge itself. Licet heli thus distinguished between a preliminary investigation to establish that a prosecutable offense had been committed (the inquisitio famae) and the actual inquest (inquisitio veritatis).¹²² This distinction would be clarified in canon eight of the Fourth Lateran Council, Qualiter et quando, which treated the question of which method and at what point a prelate must take the initiative to investigate—and possibly punish—his subordinates.¹²³ According to Innocent IV’s (r. 1243–54) gloss on this canon, in order for an inquisitio famae to lead to an inquisitio veritatis, the judge was required to find at least two upstanding community members to testify to the existence and extent of the rumor.¹²⁴

Common Knowledge in the Courtroom

The practical effect of this last stricture was to forge a strong tie between inquisitorial procedure on the one hand and community knowledge and opinion on the other. The process of integrating these two involved the incorporation of the specialized knowledge of legal professionals, who were exclusively male, with the common knowledge of all members of a community, both male and female. This general, often unsubstantiated knowledge about events came under the rubric of fama, loosely translatable here as “common knowledge” or “rumor.”¹²⁵ Court officers conducting inquests into criminal matters routinely inquired into what the talk was about an incident, and laypeople in the early fourteenth century seem to have had a basic understanding of what constituted fama. One example of the interaction between lay knowledge and formal court proceedings comes from the Valencian town of Alcira in 1296, when royal judicial officials launched a preliminary inquest into the murder of Bernat Gamiça, who had apparently been carrying on an affair with Geralda, the wife of Guillem Garret. Witnesses reported not only what they had seen but also the fama surrounding the murder: that Guillem had surprised Bernat and Geralda in flagrante delicto and had murdered Bernat in a jealous rage. When questioned as to what they meant when they said something was fama, witnesses’ answers varied slightly from person to person but were generally similar: fama was “what people say,”¹²⁶ “what the people say all over the place,”¹²⁷ or “that which the majority of people in any place affirm to be true.”¹²⁸ Variations on this theme continue to appear in testimony from other cases, where “witnesses” who had not personally seen or heard the crime in question reported that the accusations were common knowledge in the community. For example, in a case dating from the second half of the fourteenth century in the Catalan town of Vilafranca, when a man named Valentí Golet was accused of having murdered his wife Blanquina, royal prosecutors questioned several villagers as to what degree they had known the victim and whether they “knew or had heard tell” (sab ni oÿt dir) anything about her reputation (fama). Almost all witnesses testified to the same basic set of circumstances: that Blanquina’s husband had discovered her together with Pere Mísser, who had jumped out a window and broken his arm and leg while escaping. Some even went so far as to assert that this discovery was precisely what had provoked Valentí to murder his wife. Significantly, though, most of the “witnesses” had no firsthand knowledge of the events in question. One prefaced all his statements with the assertion that he did not know the truth of the matter (dix que non sab res de veritat), and almost all the other witness statements were couched as repetitions of common gossip (ha oÿt dir comunament; es deya comunament), with only one statement attributed to a person who supposedly had firsthand knowledge of the events and one other person claiming to have seen Pere Mísser’s injuries, though not the incident from which they resulted.¹²⁹ While the records do not tell the outcome of this case, the part of the case that the official record does preserve is enough to suggest that “things that everybody says are true” could be damaging, if not damning evidence.

As this case illustrates, however, fama did not just mean the rumor about the facts of a case; it had a second related meaning of common knowledge about a person. Probably the most important reason that inquisitio was useful for prosecuting hidden offenses was that it allowed prosecutors to make use of a person’s bad reputation (mala fama) as a basis for prosecution.¹³⁰ In the process of an inquest, officers of the court would question witnesses not just as to the facts as they understood them but also as to the reputation of the people involved. This conception of fama can be traced back at least to Isidore of Seville (560–636), who noted that fama is a two-sided coin—a term that may designate either illustriousness or notoriety.¹³¹ By the later Middle Ages, inquiries into a person’s fama within a community had become routine in criminal inquests. In some cases, these inquiries concerned the fama of those giving the testimony: questioners in criminal inquests routinely asked witnesses to provide not only their name and residence but also whether their testimony had been affected by love, hate, coercion, subornation, or any relation to the defendant or accuser. While an inquisitio famae might include testimony from persons who might be biased for or against the defendant, such testimony was not given under oath, suggesting that inquisitors considered it supplementary.¹³² Reliable witness testimony had to come from persons of good repute and unblemished motive: if the accused could demonstrate that the witnesses were disreputable (viles personae) or that they were acting out of ulterior motives, their testimony would lack probative value, and the judge would thus lack grounds to launch an inquisitio veritatis with regard to the crime itself.¹³³

More important, however, was the fama of the accused. Licet heli had established that bad reputation could serve in an inquisitio famae as part of the grounds for bringing a case to trial,¹³⁴ and later commentators clarified that public scandal (that is, publicly flaunted misconduct, as opposed to the open secrets that produced fama) could likewise serve as grounds for launching an inquest into the crime itself.¹³⁵ In the case involving Blanquina and Valentí Golet, for example, witnesses described not only the gossip about the murder but also Blanquina’s generally bad reputation. According to witnesses, it was common knowledge in Vilafranca that she had been four or five months pregnant when Valentí had married her and that she had carried on an affair with Romeu Comes, veguer of Vilafranca.¹³⁶ Similarly, witnesses in the Garret/Gamiça case reported on the respective reputations of the two men in question, asserting that Garret was “a good man who kept good company” (although one witness noted in passing that he was known to patronize prostitutes), while Gamiça was rumored to have been a serial adulterer whose actions had prompted at least one of his cuckolded victims to leave town in shame.¹³⁷

In this second case (and possibly in the first as well), these assertions about the reputation of the persons involved were made in response to direct questions from court officials, illustrating that, while fama-as-reputation was much more a social category than a legal one, a person’s reputation within the community could have legal implications.¹³⁸ At its worst, a person’s mala fama could be converted into infamia, a condition that went beyond mere reputation and translated into a loss of legal personality that was difficult to reinstate. The concept of legal infamia dated back to the late Roman Republic and by late antiquity was present in both Roman and canon law, making its way from there into the medieval law of the ius commune, where it manifested as a list of types of persons barred from giving testimony. In practice, however, the construction of the medieval terminology regarding infamy, both legal and social, tended to blur the distinction between the two. As early as the age of the Bolognese jurist Irnerius, medieval commentators on Roman law sometimes interpreted the Roman-law term “infamia”—which in Roman law meant legal infamia—in a way that conflated it with the idea of fama-asreputation: Irnerius, for example, defined infamia as a “decrease or consumption of reputation.”¹³⁹

Whether due to such terminological confusion or to a lingering sense that justice was a community affair,¹⁴⁰ it seems clear that talk, gossip, and “common knowledge” about a person could play a role in judicial proceedings, just as could common knowledge about events.¹⁴¹ Historians studying England’s common law courts have argued that trial records were “steeped in gossip and the collective memory of the village,” to the point where substantive legal principle meant less than community reputation,¹⁴² and that the common law system, with its jury trials and emphasis on standing within the community, might be contrasted with inquisitio, a package of procedures whose main emphasis was fact-finding.¹⁴³ However, while this general distinction is certainly true to some extent, we should not ignore that a person’s reputation within a community did figure in to the continental legal system in important ways. For one, a person’s fama determined the degree to which his or her testimony would be accepted. In court proceedings, it was not just the reputation of defendants and plaintiffs that mattered but that of witnesses, whose fama affected the credibility of their testimony. Even more significant, however, was the fact that fama could be the “reasonable cause” that sparked a full-fledged inquisitio into a particular case. Most civilians proceeded in accordance with the position taken at the Fourth Lateran Council, which made fama the procedural threshold that allowed judges to proceed against suspected criminals ex officio, whenever there was sufficient fama that someone had committed a crime.¹⁴⁴ That is, fama could decide matters of law (i.e., whether there was a case to be made) but not matters of guilt or innocence.¹⁴⁵

In order to establish that a set of circumstances was indeed common knowledge, inquisitors questioned witness groups that were as diverse as possible—not only going outside litigants’ ties of kin and obligation to avoid exceptions but going so far as to incorporate people from various neighborhoods, families, sexes, and social ranks (though nobles would likely have been less important in many cases since their knowledge rarely extended to everyday village business). In the Garret/Gamiça murder case mentioned earlier, the long list of fifty-three witnesses questioned over the course of three days included four notaries, one surgeon, one Jew, and twelve women.¹⁴⁶ Inquisitors might also call in experts to introduce specialized knowledge into the testimony. For example, the four notaries may have represented the sum total of the notaries in a town as small as Alcira, but because people called in notaries any time they needed a contract or agreement drawn up, both judicial officials and laypeople might have believed notaries’ knowledge of the community to be more extensive than that of the average community member. Additionally, because a notary might have received formal legal training,¹⁴⁷ one can well imagine that their fellow legal professionals might regard their testimony as more reliable. Notably, three of these four notaries were among the first six witnesses called, preceded only by the two eyewitnesses to the events surrounding the murder.¹⁴⁸ In addition to the notaries, another witness in the same case, Bernat Estefán, contributed his own brand of specialized knowledge: although many witnesses had claimed to have seen the victim’s wounds and speculated that those wounds had been made with a sword or dagger of some kind, Bernat Estefán told the veguer’s court that, after having found Bernat Gamiça’s murdered body under the bed, he had picked the victim up by the hair and looked for a pulse but, not finding one, determined that he was dead. Asked how Gamiça seemed to have been wounded, the witness replied that it was probably a sword or dagger of some kind that made the wound. Unlike the other witnesses, however, Estefán asserted that this was no mere guesswork, telling the judges that he was a surgeon and could tell such things by touch.¹⁴⁹

The use of expert witnesses such as this one illustrates the intersection of the specialized knowledge represented by lawyers and the community knowledge represented by ordinary witnesses. We should not, however, assume that expert involvement—whether from male legal officers or male professionals called in to provide professional expertise—meant that the courtroom excluded women’s voices. In fact, the presence of a dozen women in the group of people questioned also reflects the importance of gender in the construction of public fama. Diversity of witness lists could establish that knowledge was common to all, but the inclusion of women also reflects an understanding at the time that some types of knowledge may have been gendered: later medieval courts seem to have regarded women as authorities on matters of birth, death, kinship, marriage, and sexuality, as well as the household possessions of neighbors, with whom they might often dine as guests.¹⁵⁰ In the Garret/Gamiça case in particular, the first two witnesses questioned were women. The reason for and placement of the first—the unfaithful wife who watched her husband burst into her rooms, threatening her lover with a dagger—is obvious. But the second witness (and the one who gave the second-longest statement) was also a woman: Bevenguda the wine-seller, whose regular visits to the couple’s home to deliver wine and at times assist in some household tasks had made her a frequent witness to the wife’s infidelities, to the point where Gamiça had felt comfortable asking her where his married lover was and whether her husband had gone out.¹⁵¹

While knowledge such as Bevenguda’s might not rely specifically on gender, in other cases it did. This was especially important in cases touching on sexuality and the body. In some cases, this might mean bringing in women to test a couple’s claim of male impotence as grounds for marital annulment.¹⁵² In others, women might be asked to verify a young woman’s virginity, as was the case when, at the request of the father of an alleged rapist, the sub-veguer of Besalù pressed into service three respectable women: Maria, daughter of the late Ponç de Salevaya, Sibila, wife of Berenguer Mir of Girona, and Guillema, widow of the butcher Pere de Gradu of Besalù. These women, under the supervision of the veguer’s judge Arnau de Batet, were charged with conducting a thorough physical examination of the purported victim, Ermessenda Sabater, to determine whether she was still a virgin.¹⁵³ The case documents do not specify whether the panel’s composition of unmarried woman, wife, and widow was the result of a deliberate choice, but this selection does at least suggest not only that women had access to certain types of knowledge, but also that the courts may have recognized that different types of women would bring different knowledge to bear on a given case.

In general, we can regard fama as a mixture of social fact and legal fact, consumed by the same people who produced it, as well as by the law courts. There was no single causal connection between fama-as-reputation and famaas-legal status; rather, there existed a complex link between the two, mediated by authoritative legal texts and by the traditions of learned jurists. Laypeople might construct distinctions of reputation that did not always match up with those of learned law,¹⁵⁴ but what transformed social fama into legal fama was its constraint within parameters outlined by legal professionals.¹⁵⁵ That is to say, reputation carried legal weight only when it was translated into terms actionable at law.

The growing specialization and professionalization of the law played an important role in this process of translation. By the time that the cases discussed in this and the following chapters came to court, a litigant, whether male or female, had to navigate a tortuous path through not only the complicated and overlapping jurisdictions of the Crown of Aragon but also through the morass of procedural law. The later Middle Ages saw a proliferation of specialized interpretive guidebooks, written by university-trained legal scholars and meant to aid legal practitioners in navigating their way through the complexities of Romano-canonical procedure.¹⁵⁶ Specialized procedure also required specialized legal professionals: advocates to advise both plaintiffs and defendants on the law, and judges and legal experts to sort out the legal nuances for the veguers, batlles, justicias, and assorted other judicial officers who were not themselves trained in law. Considering how complicated the law had become, we should not be surprised to see female litigants operating in court with the assistance of procurators, advocates, and other legal representatives. While some of this mediation of women’s participation in their own litigation may have been the result of gendered ideas about women’s role in the public forum of the courts, the only legal bar in the ius commune on women’s participation was that they should not be compelled to represent others in court, and even this rule had its exceptions. While gender undoubtedly played a role in women’s frequent recourse to procurators and other male representatives, the very complexity of the court system probably also had a lot to do with it: as James Brundage has pointed out, by the later Middle Ages (much as in our own time), it would be a foolish business indeed for an untrained layperson to attempt to navigate the court system unassisted.¹⁵⁷ On the other hand, the procedural innovations that relied on fama meant that community knowledge about both events and people would take on increasing importance, giving laypeople, both male and female, a voice in the outcome of a legal case, thus making them participants in the shaping of women’s legal identity.

Conclusions

The later medieval period in the Crown of Aragon was a time of great ferment in the culture of the learned law. Spurred in part by the increasing number of jurists trained in the ius commune in the first half of the thirteenth century, the count-kings of the Crown of Aragon sponsored new codifications of regional law, drawn up according to the paradigms of Roman and, to a lesser degree, canon law. Although the penetration of the new law was by necessity incomplete—monarchs had to contend with persistence of local custom, seigneurial jurisdictions, semiautonomous Jewish and Muslim communities, and even antiregalian uniones in Aragon and Valencia—by the end of the thirteenth century the ius commune formed the fundamental underpinning of both substantive and procedural law throughout most of the Crown territories.

As the next chapter will show, both Roman and canon law, like law codes throughout early and high Middle Ages, addressed situations involving women according to relational category—that is, whether they were unmarried women, wives, or widows. What the ius commune added to the legal landscape was a conceptual vision of “woman” as a broad legal category. The overarching ideas about women in the ius commune—that they were, as a group, vulnerable, weak, or naturally modest, and thus in need of male protection in their dealings in the public sphere—permeated both Roman and canon law. Yet even during the centuries that these gendered legal assumptions were taking shape, they were the subject of some debate and may have been honored as much in the breach as in the observance.

Catalano-Aragonese jurists, legislators, and litigants inherited these overarching ideas about women’s legal nature, but it is only fair to assume that they must have approached these sweeping assumptions with some of the same ambivalence as their predecessors. The inherent contradictions of the legal culture as it related to women are perhaps most evident in the field of procedural law. Women’s supposed incapacity was belied by their willingness to go to court to defend their own interests; medieval jurists’ frequent recourse to women’s testimony demonstrates that the written law’s image of women as vulnerable and incapable legal beings was not always reflected in practice.

Yet we cannot pretend that Romano-canonical ideas about women in general had no impact on women’s lives. Nor should contradictions be oversimplified to a contest between written law and reality of women’s experience, or even necessarily read as women subverting the law. Jurists and laypeople alike seemed quite capable of working with the contradictions that were built into the system. In fact, embracing the gendered conceptual vocabulary of the ius commune was essential to the legal strategies of female litigants in this period. Returning to the case outlined at the beginning of this chapter, Ermessenda de Cabrenys’s procurator tried to use gendered legal ideas to exempt his client from the obligation to appear in person to answer charges brought against her. Although this defense strategy ultimately proved fruitless (both the veguer and his judge-ordinary insisted that Ermessenda appear in person), it seems at least reasonable in the context of the Roman law revival of the high and later Middle Ages. There was, however, a catch for women like Ermessenda who might choose to employ such a strategy or have it employed on their behalf: Roman ideas about the legal status of the materfamilias, like many other later medieval legal ideas about gender, were firmly bound to the Roman and ecclesiastical gender systems that helped to produce them, and medieval legal representatives had no cause to try to divorce the one from the other. A Roman praetor might have felt comfortable with the language that Berenguer used in defense of his client Ermessenda, referring to her “matronly modesty” (matronalis pudoris)¹⁵⁸ and saying that the veguer’s order that she present herself personally in his court was “contrary to the modesty and shame of females” (contra pudorem ac verecundiam feminarum)¹⁵⁹—all of which hearkened back to his opening argument that it was inappropriate for a materfamilias to mix with the crowds of men at the law courts.¹⁶⁰ Ermessenda’s procurator thus used a provision of Roman law with a specific gender meaning—that the nature of women made it inappropriate for them to be forced to appear in the implicitly male world of the law courts—in order to assert his client’s immunity; this, despite the fact that Ermessenda’s previous business dealings had already proven her quite capable of undertaking legal action on her own behalf.

Ermessenda de Cabrenys’s case before the legal authorities of Girona is not only located at the intersection of law and gender but also illustrates the complexity of the relationship between the two. The reception in the Crown of Aragon of the Roman and canonical legal traditions that formed the ius commune added an element to the interplay of law and culture that would not have been present a little over a century earlier. Yet that element was not monolithic; rather, it encapsulated several ideas about gender as it related to women’s standing before the law.

Jurists, litigants, and their representatives thus had not one or two gender ideas to choose from but many. As we shall see in the following chapters, some of these were applied to women in general, while others differed according to a woman’s life stage, marital status, and reputation within her community. Social standing (where the documents allow us to discern it) could make a difference as well: Ermessenda de Cabrenys’s position within the community and her ability to hire highly trained legal counsel mean that the ideas outlined in this chapter are more explicit in her case than they might be in others. Yet we might assume that this same set of often contradictory ideas ran through much of the later medieval jurisprudence involving women. The combination of increasingly complex substantive and procedural law with the importance of fama meant that many different types of knowledge went into the formation of both a legal identity and a court’s verdict. How the interaction of those ideas played out often depended upon the particulars of a given case. If we wish to understand fully how the interaction of law and culture reflected or influenced women’s situation in both law courts and life, we need to take into account not only written and received law but also the larger discourses of community reputation, social networks, and a woman’s relationship with the men in her world—variables that are the subject of the following chapters.